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Last Post 17 May 2013 06:35 PM by  domanico
R-12-0029 Petition to Promulgate Rule 412, Rules of Evidence
 9 Replies
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Author Messages

21 Jun 2012 04:58 PM

    Petition to Promulgate Rule 412, Rules of Evidence

    Would provide for the admission of medical bills into evidence

    Jack Levine, Esq., Bar No. 001637
    7501 North 16th Street, Suite 200
    Phoenix, AZ 85020
    [email protected]

    Filed June 20, 2012

    Comments due May 21, 2013.

    DENIED August 27, 2013.


    20 Sep 2012 07:31 PM
    Richard S. Plattner
    Board Certified Specialist - Injury & Death Litigation PLATTNER VERDERAME, P.C.
    [email protected]
    877-805-4529 (toll free)
    602-266-2002, ext. 108 (ph)
    602-266-6908 (fax)
    http://www.pvazlaw.com (web)
    316 E. Flower Street
    PO Box 36570
    Phoenix, AZ 85067-6570
    State Bar #005019

    I write in support of this petition. There is currently much mischief and unnecessary expense -- and traps for the unwary -- in the way trial judges view the necessary foundation for proving medical expense in injury cases. Although in many cases there is a good faith dispute about whether treatment arose from accident injuries or from other causes, in many cases there is no real dispute and yet defendants will not stipulate to admit bills. In every other area of civil practice the courts enforce professional cooperation, but most judges still view the courtroom as trial by combat, and will allow a lawyer to insist on expensive and technical foundation -- even when the lawyer has disclosed no basis for denying admissibility.
    Additional authority which may be useful to reference in considering what constitutes "reasonable" care and what is meant by "necessary" care include: See 5A C.J.S. §§156, p. 48 [Competent evidence is admissible to show actual or reasonable amount or the necessity of medical, hospital, nursing and similar expenses which proximately flow from the wrong]; Damages, 22 Am.Jur.2d §§200, p. 171 [Defendant is not relieved from liability to pay for a physician’s services because they proved to have been unnecessary in fact, if, in the light of the facts known at the time they were rendered, they seemed wise]; 22 Am.Jur.2d §§527, pp. 608, 609 [Damages may be reduced because the plaintiff failed to act as an ordinary reasonable person, but the doctrine does not prevent recovery of damages flowing from the injury if the injured plaintiff takes those measure which a reasonably prudent person would have taken under similar circumstances. He need not take the best of all possible care of his injuries, or employ that means best adapted to cure the injuries. Thus, it is immaterial that means employed do not effect a cure, or that another method of treatment might have given better results. Instead, it is sufficient that the plaintiff acted in good faith and with due diligence in the exercise of ordinary care and reasonable prudence or judgment when selecting the doctor or treatment for his injuries]; An example of the above rule is Damages, 25 C.J.S. §§47(2), p. 764, footnote 81.24 [Even if plaintiff suffered no actual injury, he can recover x-ray expense proximately resulting from defendant’s negligent act, i.e., the expense of excluding suspected injuries]; Restatement of Torts2d, §§457, p. 496 [The negligent defendant is also liable for additional harm the plaintiff suffers from the normal efforts of third persons rendering aid which the plaintiff’s injury reasonably requires, whether the acts of the third persons were done with or without negligence, i.e., the defendant is liable for foreseeable medical care and expense for the treatment of injuries not suffered in the accident].

    On the issue of what medical testimony will support an award, see Ideal Food Products Co. v. Rupe, 76 Ariz. 175, 178, 261 P.2d 992 (1958); Coca Cola Bottling Company of Tucson v. Fitzgerald, 3 Ariz. App. 303, 306, 413, P.2d 869 (1966); Kreisman v. Thomas, 12 Ariz. App. 215, 219, 469 P.2d 107 (1970); Byrns v. Riddell Incorporated, 113 Ariz. 264, 268, 550 P.2d 1065 (1976); Butler v. Wong, 117 Ariz. 395, 399, 573 P.2d 86 (1977) [An award will be sustained if there is medical testimony of the mere possibility of a causal conection between the accident and the plaintiff’s complained of condition and there is other evidence or circumstances indicating such a relationship.]

    On the issue of what the jury should consider to award future medical expense, see Saide v. Stanton, 135 Ariz. 76, 78, 659 P.2d 35 (1983) [Whether future medical expenses are reasonably probably or certain is determined from all the relevant circumstances which are before the Court].

    On the issue of whether an award for future medical expense is proper even if doctors do not testify future medical care is probable, see Saide v. Stanton, supra, Id. 135 Ariz. at p. 78 [The refusal of an expert to use a magic word or phrase such as probablility is not determinative of whether future medical expense can be awarded].

    Plaintiff is entitled to recover all of the medical expenses and bills caused by the
    tortfeasor that were reasonable to Plaintiff at the time, including “reasonable and necessary” medical expenses “caused” by a tortfeasor, e.g., treatment that was sought by Mr. Granville in good-faith based upon a doctor’s advice. See RAJI Jury Instruction “Personal Injury Damages” No. 1.
    A Plaintiff’s right to recover medical expenses is based on the premise that an injured party is entitled to all damages which are “caused” by the tortfeasor. According to the Arizona Supreme Court, “no principle of law has been so unvaryingly stated.” McDowell v. Davis, 104 Ariz. 69, 71, 448 P.2d 869 (Ariz.,1968). The causal connection is not broken by the addition of another factor (such as a doctor over-treating or medical malpractice) which merely contributes to the result without superseding the efficient operation of the first cause, Dyer v. Best Pharmacal, 118 Ariz. 465, 467, 577 P.2d 1084, 1086 (Ariz. App. 1978).
    Arizona does not provide for an “unnecessary or unreasonable treatment” defense. The defendant is liable for all of the plaintiff's medical expenses where the defendant's conduct helped produce the medical expenses and where the medical expenses would not have occurred but for the conduct of the defendant. The Defendant’s liability is also extended to include any injuries suffered by plaintiff as a result of medical malpractice committed during treatment of the victim's injuries. Transcon Lines v. Barnes, 17 Ariz. App. 428, 434 (1972).
    “Unreasonable” and “Unnecessary” is not a valid defense, only failure to mitigate damages.
    The only legal basis for the defense proposed is the “failure to mitigate” damages defense – sometimes referred to as the “doctrine of avoidable consequences.” E.g., Law v. Superior Court, 157 Ariz. 142, 143-44, 755 P.2d 1130, 1131-32 (Ariz. App. 1986). Although the “doctrine of avoidable consequences” and “duty to mitigate” imposes a duty upon plaintiffs to use “reasonable efforts” to avoid any further harm, it does not apply to, nor preclude a plaintiff from reasonably seeking treatment or diagnostics to treat an injury. Id. In fact, John Granville “had the duty to exercise due care and to act diligently to protect his… own interests.” Id. at 1133. “The principle that a plaintiff must undertake reasonable measure to protect his own interest is a paradigm judicial principle of historic origins.” Id. (emphasis added). It is a fundamental policy that recovery depends on the plaintiff’s proper care for the protection of his own interests requires him only the standard of a reasonable person under the circumstances. Id. at 1134 citing to W. Prosser & W. Keeton, the Law of Torts § 65 at 458 (5th ed. 1984) . There is no duty anywhere in Arizona law for an injured person to protect the interests of the person who injured him, whether it be by failing to follow doctor’s instructions, seeking out the cheapest medical care or refusing recommended medical care.
    This is confirmed by Illustration 1 to § 919 of the RESTATEMENT (SECOND) OF TORTS which illustrates as follows: A negligently hits and bruises B’s leg. B applies a dressing to the wound but, reasonably believing that the bone in his leg may be fractured, has x-ray photographs taken. These reveal no fracture. B is entitled to recover the expenses of the x-ray photographs. Moreover, Comment C to § 919 of the RESTATEMENT (SECOND) OF TORTS specifically states that “[t]he rule stated in this Section applies whether or not the efforts to avert the threatened harm are successful.” Thus, treatment, even where it fails to resolve an injury, is not unreasonable or unnecessary on its face and is recoverable.
    Likewise, §457 (“Additional Harm Resulting From Efforts to Mitigate Harm Caused by Negligence”) states: If the negligent actor is liable for another’s bodily injury, he is also subject to liability for any additional bodily harm resulting from normal efforts of third persons in rendering aid which the other’s injury reasonably requires, irrespective of whether such acts are done in a proper or negligent manner. A person’s treatment is reasonable and necessary if the person believed that it is necessary for the condition or symptoms experienced. See Jess Edwards, Inc. v. Goergen, 256 F.2d 542 (10th Cir. N.M. 1958) (if an injured person exercises reasonable care in selecting a health care professional, that person may recover damages to the full extent of the injury sustained, even though the health care provider omits to use the most approved remedy or the best means of cure, or fails to exercise as high a degree of care or skill as any other health care provider).
    Other courts have excluded evidence of opinions that the care rendered was improper or unnecessary. See Ponder v. Cartmell, 784 S.W.2d 758 (Ark. 1990); Anderson & McPadden, Inc. v. Tunucci, 356 A.2d 873 (Conn. 1975); O’Quinn v. Alston, 105 So. 653 (Ala. 1925).
    The Rules of Evidence should provide a simplified procedure (as provided in the Petition) to admit medical expenses. The admission of this evidence will not limit the defendant's ability to introduce evidence of appropriate defenses, and will increase the efficiency of the courts and judicial process.


    21 Sep 2012 12:02 PM
    Geoffrey M. Trachtenberg
    Levenbaum Trachtenberg, PLC
    362 N. 3rd Avenue
    Phoenix, Arizona 85003
    [email protected]
    No. 019338

    Dear Justices --

    I am writing in support of Petition No. 12-0029 for those reasons stated by Messrs. Levine and Plattner. The Rules of Evidence should be amended as suggested by the Petition.


    Geoff Trachtenberg

    25 Mar 2013 12:55 PM
    Andrew J. Petersen
    SB No. 016699
    Humphrey & Petersen, P.C.
    3861 E. Third Street
    Tucson, AZ 85716
    Ph: 520-795-1900
    E-mail: [email protected]


    29 Apr 2013 10:41 AM
    John A. Furlong, Bar No. 018356
    General Counsel
    State Bar of Arizona
    4201 N. 24th Street, Suite 100
    Phoenix, Arizona 85016-6266
    [email protected]

    02 May 2013 04:41 PM
    Evan S. Goldstein (SB No. 011866)
    Christi A. Woods (SB No. 022770)
    Hesam Alagha (SB No. 026607)
    1850 E. Thunderbird Road
    Phoenix, Arizona 85022
    Phone No. (602) 569-8200
    [email protected]

    07 May 2013 11:02 AM
    Hon. Brian R. Hauser (Ret.)
    Bar No. 006181
    1313 East Osborn Road, Suite 220
    Phoenix, Arizona 85014
    Telephone: (602) 308-7221
    Facsimile: (602) 240-6951
    [email protected]

    17 May 2013 04:07 PM
    Daniel Torrens, #017524
    Turley, Childers, & Torrens, P.C.
    3101 North Central Avenue, Suite 1300
    Phoenix, AZ 85012
    [email protected]

    17 May 2013 05:35 PM
    Samuel A. Thumma
    Co-Chair, Advisory Committee on Rules of Evidence
    Judge, Arizona Court of Appeals
    1501 West Washington
    Phoenix, AZ 85007-3329
    Telephone: (602) 542-3492
    Facsimile: (602) 542-4833
    State Bar of Arizona No. 14679

    Mark W. Armstrong
    Co-Chair, Advisory Committee on Rules of Evidence
    Staff Attorney, Arizona Supreme Court
    Superior Court Judge (Ret.)
    1501 West Washington, Ste 415
    Phoenix, AZ 85007-3329
    Telephone: (602) 452-3387
    Facsimile: (602) 452-3482
    State Bar of Arizona No. 4945
    [email protected]

    17 May 2013 06:35 PM
    (FIRM STATE BAR NO. 00032000)

    TELEPHONE: (602) 506-3800
    (STATE BAR NUMBER 011474)
    [email protected].

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